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May 16, 2017

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 at 04:49 PM | Permalink


The "experts" are idiots. Doug your take is 100% correct. The issue is not that there is discrimination against alienage, but rather, to coin a term, illegal alienage.

The idea that the federal government has plenary power over immigration as a whole isn't right either--states are, or should be, free to deny welfare and other services to illegals.

I would argue that there is nothing wrong with a state taking into consideration even a legal immigration status. Those who are here by the grace of society are ingrates when they commit crime--so why wouldn't that bear on character, which, last I checked, was part of sentencing.

Stewart Harris may be able to convince some 'rat judge of this, but the reality is that TN has this right.

Posted by: federalist | May 16, 2017 5:08:04 PM

It depends. If Congress has already legislated in this specific area then state laws must give way to the Supremacy Clause. What is unclear to me is whether Congress has legislated on this issue. I don't know enough about federal immigration law to say.

Posted by: Daniel | May 16, 2017 6:46:45 PM

Have there been other areas where the courts have ruled that a state sentencing power is invalid because of some action of Congress? Note I am eliminating the entire mess of constitutionalized crim law because that is on based on any action of Congress but rather federal judges' reading of the constitution.

Posted by: Soronel Haetir | May 16, 2017 11:03:53 PM

Let's look at the question from the perspective of your classic article "Conceptualizing Blakely. "

In the article you write "The offense characteristic/offender characteristic distinction informs the Sixth Amendment jury trial right. ". We are clearly talking about an offender characteristic.

I don't know the Tennessee sentencing scheme but it sounds like the appropriate sentence is affected by "aggravating factors". And mitigating factors probably. That is how it is in NC. The bill makes defendants immigration status an aggravating factor.

So, i would suggest that immigration status cannot be used to increase sentence above the "Blakely maximum". But it can be used to offset mitigating factors to prevent the sentence from being lowered.

US v Alleyene makes clear a fact which increases potential sentence above the level allowed by conviction of the core crime is an element of a new greater crime. Offender characteristics cannot be elements of a crime but they can be sentencing factors.

Suppose, to make things simple, a statute says if conviction of a crime calls for an eight year sentence unless there is an aggravating factor which outweighs mitigating factors and then it carries ten years. If mitigating factors outweigh aggravating then sentence is six years.

So my off the cuff answer is "it depends upon if the status is being used as an element of crime or a sentencing factor to prevent s lower sentence.

Your article was written before Alleyene. But your premise was prescient nevertheless.


Posted by: Bruce Cunningham | May 16, 2017 11:39:43 PM

Bruce, thanks for the cites/praise, but of course Blakely et al line of Sixth Amendment cases only concerns the procedures used to establish any particular fact/factor that impacts the range of available sentences. I think some are claiming that, regardless of the procedures used to prove up current and past immigration status/actions, a state cannot ever substantively use current and past immigration status/actions as an aggravating sentencing factor.

Posted by: Doug B. | May 17, 2017 7:16:57 AM

Doug, I don't think that Apprendi/Blakely established a "procedure" as much as they define what a crime is.

Thomas in Alleyene writes, "the core crime and the fact triggering the mandatory minimum sentence together CONSTITUTE A NEW, AGGRAVATED CRIME."

In other words, in my opinion, Apprendi/Blakely has nothing to do with sentencing factors. They deal only with defining what a crime is. there is already a procedure in place to try people for committing crimes, a jury trial.


Posted by: bruce cunningham | May 17, 2017 9:41:55 AM

I certainly read the critic's statements as being equally applicable to a state using immigration status as an offense factor (proven to a jury BRD) as to being part of the sentencing mix.

Posted by: Soronel Haetir | May 17, 2017 9:52:04 AM

Soronel, with all due respect, I think "immigration status" is an Offender factor, not an Offense factor. Those are two entirely different things.


Posted by: bruce cunningham | May 17, 2017 10:08:00 AM

If I am understanding the factor, it seems to resemble the federal offense for illegal re-entry after deportation. Clearly as a general offender character characteristic, the commission of uncharged offenses has traditionally been something that judges can consider in sentencing.

To the extent that there is a specific punishment consequence (i.e. additional points for illegal re-entry that would not apply to other prior offenses), there may be an argument under the two recent Supreme Court cases out of Arizona that such additional punishment for immigration offenses enters into a field that Congress has preempted. It's been a while since I have read the two cases and -- like most criminal practitioners -- federal preemption is not something that I spend a lot of time worrying about.

Posted by: tmm | May 17, 2017 10:54:49 AM

Actually, after thinking about it some I could see a decent argument for it being preempted if a state did in fact try and make it part of an offense:

Whoever having been deported and then re-enters the country without authorization and then commits any other felony is guilty of an offense of a severity one level greater than the base felony.

I could also see such an offense running into proof problems, I could both see the feds not wanting to play along and also there might be negative proof issues (i.e. "you can't prove a negative" and you can't turn an offense element around on the defendant).

Posted by: Soronel Haetir | May 18, 2017 12:46:07 AM

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